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Congress, the Court, and the Constitution (LOUIS FISHER)
House of Representatives, Subcommittee on the Constitution, Committee on the Judiciary, Washington, ^ | January 29, 1998 | LOUIS FISHER

Posted on 03/16/2003 2:42:45 PM PST by Remedy

PREPARED STATEMENT OF LOUIS FISHER, SENIOR SPECIALIST IN SEPARATION OF POWERS, CONGRESSIONAL RESEARCH SERVICE

Mr. Chairman, I appreciate the opportunity to testify on the role of Congress in interpreting the Constitution. To my knowledge, this is the first time that congressional hearings have been used for the purpose of understanding the contributions made by legislators in shaping and protecting constitutional values. Too often, especially in recent years, it is assumed that the judiciary has a monopoly on constitutional interpretation and that Congress must defer to the courts.

The framers expected Congress to play a pivotal role in debating and legislating on constitutional issues. Most of the important constitutional issues in the early decades were decided almost exclusively by Congress and the President. There were few decisions by federal courts to guide the elected branches. The record of this early period has been ably covered by David Currie in a number of law review articles, brought together in his book The Constitution in Congress (1997). As he explains in the concluding chapter, it was ''in the legislative and executive branches, not in the courts, that the original understanding of the Constitution was forged.''

Particularly in the twentieth century, scholars, judges, and sometimes Members of Congress claim that the U.S. Supreme Court has the ''last word'' on the meaning of the Constitution. Under this theory, if Congress disagrees with a Court ruling the only alternative is to pass a constitutional amendment to overturn the Court. This belief in judicial supremacy overlooks much of the flexibility and political considerations that characterize the relationship between the judiciary and other elements of the political system: Congress, the President, the states, and the general public.

What About Marbury?

In recent decades, much has been made of the statement by Chief Justice John Marshall, in Marbury v. Madison (1803), that it is ''emphatically the province and duty of the judicial department to say what the law is.'' Does that mean that the Court alone delivers the ''final word'' on the meaning of the Constitution? According to a unanimous ruling by the Court in the Little Rock crisis, Marbury ''declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution.'' Cooper v. Aaron, 358 U.S. 1 (1958). That principle was reasserted by the Court in the reapportionment case of Baker v. Carr (1962): ''Deciding whether a matter has in any measure been committed by the Constitution to another branch of government, or whether action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and a responsibility of this Court as ultimate interpreter of the Constitution.'' Seven years later, in the exclusion case of Adam Clayton Powell, the Court again referred to itself as the ''ultimate interpreter'' of the Constitution. Powell v. McCormack, 395 U.S. 486, 549 (1969).

These statements distort what Chief Justice Marshall decided in Marbury. While it is ''emphatically the province and duty of the judicial department to say what the law is,'' certainly the same can be said of Congress and the President. All three branches say what the law is. The Court states what the law is on the day a decision comes down; the law may change later by actions taken by the elected branches. I will give a number of prominent examples of this institutional interplay.

In 1803, Marshall did not think he was powerful enough to give orders to Congress and the President. After the elections of 1800, with the Jeffersonians in control of Congress and the Presidency, the Federalist Court was in no position to dictate to the other branches. Marshall realized that he could not uphold the constitutionality of Section 13 of the Judiciary Act of 1789 and direct Secretary of State James Madison to deliver the commissions to the disappointed would-be judges. President Thomas Jefferson and Madison would have ignored such an order. There is no reason to think that Marshall believed that the Court was supreme on matters of constitutional interpretation.

This conclusion is borne out by the impeachment hearings of Judge Pickering and Justice Chase. Marbury was decided on February 24, 1803. The House impeached Pickering on March 2, 1803 and the Senate convicted him on March 12, 1804. As soon as the House impeached Pickering, it turned its guns on Chase. If that move succeeded, Marshall had reason to believe he was next in line. With these threats pressing upon the Court, Marshall wrote to Chase on January 23, 1804, suggesting that Members of Congress did not have to impeach judges because they objected to their judicial opinions. Instead, Congress could simply review and reverse objectionable decisions through the regular legislative process. Here is Marshall's language in the letter to Chase:

I think the modern doctrine of impeachment should yield to an appellate jurisdiction in the legislature. A reversal of those legal opinions deemed unsound by the legislature would certainly better comport with the mildness of our character than [would] a removal of the Judge who has rendered them unknowing of his fault.

The meaning of Marbury is placed in proper perspective when we recall that Marshall never again struck down a congressional statute during his long tenure on the Bench, which lasted from 1801 to 1835. Instead, he played a consistently supportive role in upholding congressional interpretations of the Constitution. In the years following Marbury, Marshall upheld the power of Congress to exercise the commerce power, to create a U.S. Bank (even though no such power is expressly provided in the Constitution), and to discharge other constitutional responsibilities. The judiciary functioned as a yea-saying, not a negative, branch.

The respect of the Court for congressional judgments is evident in some decisions in the 1850s. In 1852, the Supreme Court held that the height of a bridge in Pennsylvania made it ''a nuisance.'' Congress responded with legislation that declared the bridges at issue to be ''lawful structures,'' and the Court then ruled that the bridges were no longer unlawful obstructions.(see footnote 12) In the second decision, Justices McLean, Grier, and Wayne objected that Congress could not annul or vacate a court decree and that the congressional statute was an exercise of judicial, not legislative, power. Yet the Court has never adopted that position. As the Court noted in 1946: ''whenever Congress' judgment has been uttered affirmatively to contradict the Court's previously expressed view that specific action taken by the states in Congress' silence was forbidden by the commerce clause, this body has accommodated its previous judgment to Congress' expressed approval.''(see footnote 13)

Settling Constitutional Issues

In the May 1997 issue of Harvard Law Review, Larry Alexander and Frederick Schauer argue that the Supreme Court should be the exclusive and authoritative interpreter of the Constitution. Although they caution that their study is not based on historical precedents, they conclude that the Court is best situated to decide and settle constitutional issues, particularly transcendent questions. They believe that vesting such power in the courts would contribute to political stability.

Neal Devins and I talked about this article. We tried to recall a time when the Court ever ''settled'' a constitutional issue, transcendent or otherwise. Certainly the decision in Dred Scott did not settle the slavery issue. Judicial resistance, over a period of almost forty years, to the use of the commerce power by Congress did not settle the issue of national regulation. Eventually the Court gave way. Roe v. Wade did not settle the abortion issue. In 1992, the Court jettisoned the trimester standard that had drawn criticism from many quarters. The decision in Furman v. Georgia (1972) to strike down death-penalty statutes in Georgia and Texas as cruel and unusual did not settle that issue. Under heavy public pressure the Court later acknowledged that the death penalty, if accompanied by revised procedures, was constitutional.

Even for more popular decisions, such as the desegregation case of 1954, little was settled by the Court's ruling. More than a decade later, a federal appellate court noted: ''A national effort, bringing together Congress, the executive, and the judiciary may be able to make meaningful the right of Negro children to equal educational opportunities. The courts acting alone have failed.''(see footnote 14) To deal with racism and segregation, it was necessary for Congress and the President, with bipartisan majorities, to pass such statutes as the Civil Rights Act of 1964 and the Voting Rights Act of 1965.

Devins and I concluded that judicial exclusivity in constitutional lawmaking would be contrary to American history, the framers' intent, and legal development. We also believe that it would lead to political instability, not stability. Our response to the Alexander-Schauer article will appear in the February 1998 issue of Virginia Law Review.

To explain the breadth of congressional activity in interpreting the Constitution, the following three sections discuss (1) how Congress resolves these issues before the Court decides, (2) what it may do when the Court upholds the constitutionality of a measure, and (3) what it may do when the Court decides that a measure is unconstitutional. The meaning of the Constitution is not fixed by any one branch, but is rather that product of all three branches acting in concert with the states and the public at large.

Before the Court Decides

Congress frequently must act on constitutional matters before there are useful precedents from the courts. Many of the difficult issues related to the veto power, the pocket veto, recess appointments, the incompatibility and ineligibility clauses, war powers, covert operations, and other disputes are generally resolved by Congress with little input from the courts.(see footnote 15)

Occasionally these issues move toward the Supreme Court, but just as quickly they are turned back by various threshold tests. In the 1970s, covert funding of the intelligence community was challenged as a violation of the Statement and Account Clause. In 1974, the Court held that the litigant lacked standing to bring the suit. United States v. Richardson, 418 U.S. 166. That issue was left to Congress and the President to decide. In 1987, when it appeared that the Court would decide the constitutionality of a pocket veto by President Reagan, the case was dismissed on grounds of mootness. Burke v. Barnes, 479 U.S. 361. That issue, too, was pushed back to elected officials to resolve. A variety of other doctrines-political questions, ripeness, prudential considerations, nonjusticiability, and equitable discretion-are used by the court to sidestep constitutional issues. The result is that a number of constitutional issues are returned to the elected branches.

When the Court Upholds Constitutionality

When the Court decides that a congressional statute is constitutional, the controversy may remain open for different treatment by the legislative and executive branches. For example, President Andrew Jackson received a bill in 1832 to recharter the United States Bank. Although the Court in McCulloch v. Maryland (1819) had ruled that the bank was constitutional, Jackson vetoed the bill on the ground that it was unconstitutional. His veto message said that he had taken an oath of office to support the Constitution ''as he understands it, and not as it is understood by others.'' His position on the veto power has been followed by all subsequent Presidents. Regardless of the constitutional decisions reached by Congress and the courts, Presidents may independently analyze the constitutionality of bills presented to them.

To take a contemporary example, Presidents Reagan and Clinton signed bills reauthorizing the office of independent counsel. The Court in Morrison v. Olson (1988) upheld the constitutionality of the independent counsel statute. Nevertheless, President Clinton or any future President has the independence to veto a reauthorization bill on the ground that the office of independent counsel encroaches upon the executive power granted to the President by the Constitution. For that matter, Members of Congress could decide at the next reauthorization stage that the office of independent counsel violates the Constitution. Morrison simply means that Congress and the President may create the office if they want to. They may rethink and revisit the statute at any time.

My attached CRS Report, ''Congressional Checks on the Judiciary,'' contains a number of other examples of Congress acting by statute to neutralize a constitutional decision by the Court. In 1986, the Court upheld the constitutionality of an Air Force regulation that prohibited Captain Simcha Goldman from wearing his yarmulke indoors while on duty. The Court decided that the needs of the Air Force outweighed Goldman's constitutional right to freely exercise his religion. Goldman v. Weinberger, 475 U.S. 503. Within a year, Congress attached to a military authorization bill language permitting military personnel to wear conservative, unobtrusive religious apparel indoors, provided that it does not interfere with their military duties. 101 Stat. 1086-87, sec. 508 (1987). The Court decided the conflict between Air Force needs and religious freedom one way; Congress decided it the other way.

When the Court Finds Unconstitutionality

If the Court decides that a governmental action is unconstitutional, it is usually more difficult for Congress and the President to challenge and override the judiciary. But even in this category there are examples of effective legislative and executive actions in responding to court rulings.

In his inaugural address in 1857, President James Buchanan announced that the dispute over slavery in the territories ''is a judicial question, which legitimately belongs to the Supreme Court of the United States, before whom it is now pending, and will, it is understood, be speedily and finally settled.'' Two days later Chief Justice Taney handed down the Court's decision in Dred Scott, holding that Congress could not prohibit slavery in the territories and that blacks were not citizens. That decision was eventually overturned by the Civil War Amendments-the Thirteenth, Fourteenth, and Fifteenth Amendments-but before those amendments were ratified Congress and the President had already reversed Dred Scott. In 1862, Congress passed legislation to prohibit slavery in the territories, 12 Stat. 432, and in that same year Attorney General Bates released a long opinion which held that neither color nor race could deny American blacks the right of citizenship. 10 Op. Att'y Gen. 382 (1862).

In 1916, Congress relied on the commerce power to enact a child labor law. In Hammer v. Dagenhart (1918), the Court held that the statute was unconstitutional. A year later Congress passed new child labor legislation, this time relying on the taxing power. Again the Court, in Bailey v. Drexel Furniture Co., struck it down. Congress passed a constitutional amendment in 1924 to give it the power to regulate child labor but ratification proved impossible. In 1938, Congress returned to the commerce power to regulate child labor and this time the Court, unanimously, upheld the statute. United States v. Darby, 312 U.S. 100 (1941).

This record-from 1916 to 1941-was an exceptionally lengthy dialogue between Congress and the Court, with the legislative branch eventually prevailing. The Court later admitted that ''the history of judicial limitation of congressional power over commerce, when exercised affirmatively, has been more largely one of retreat than of ultimate victory.'' Prudential Ins. Co. v. Benjamin, 328 U.S. 408, 415 (1946).

The Court's decision last year in Boerne v. Flores, striking down the Religious Freedom Restoration Act (RFRA), raises a number of issues about judicial finality. In deciding that Congress had exceeded the scope of its enforcement power under Section 5 of the Fourteenth Amendment, and hinting that the Court has the last and final word in deciding the meaning of the Constitution, the Court nevertheless left the door wide open for future congressional action. The reasoning and premises in the decision are often unpersuasive and internally inconsistent. The Court invites future congressional action by noting that there ''must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.'' 117 U.S. at 2164. Does that mean that adjustments to a redrafted bill would pass muster? In comparing RFRA to the Voting Rights Act, the Court says that RFRA's ''legislative record lacks examples of modern instances of generally applicable laws passed because of religious bigotry.'' Id. at 2169. Is that the problem? If Congress, with findings, could identify recent examples of religious persecution, would RFRA be constitutional?

My CRS report includes other examples, but I will end with a dispute in 1970. The House Committee on Internal Security prepared a report on the honoraria given to guest speakers at colleges and universities. The study included the names of leftist or antiwar speakers and the amounts they received. The ACLU obtained a copy of the galleys and asked a federal district court to enjoin their publication. The court ruled that the report served no legislative purpose and was issued solely for the sake of exposure or intimidation. It ordered the Public Printer and the Superintendent of Documents not to print the report ''or any portion, restatement or facsimile thereof,'' with the possible exception of placing the report in the Congressional Record. Hentoff v. Ichord, 318 F.Supp. 1175, 1183 (D.D.C. 1970).

The House of Representatives passed a resolution that told the courts, in essence, to step back. During the course of the debate, Members of Congress explained that it was not the practice of the House to print committee reports in the Record. Moreover, the judge's order ''runs afoul not only of the speech and debate clause-article I, section 6-of the Constitution, but obstructs the execution of other constitutional commitments of the House as well, including article I, section 5, which authorizes each House to determine the rules of its proceedings, and requires each House to publish its proceedings.'' After the resolution was passed by a large bipartisan margin (302 to 54), the report was printed without any further interference from the judiciary.

This collision between Congress and the judiciary was unusually abrupt. For the most part, the legislative-judicial dialogue is more nuanced and subtle. In INS v. Chadha (1983), the Supreme Court struck down the ''legislative veto'' as unconstitutional. Congress no longer attempts to use one-House or two-House legislative vetoes to control the executive branch. On the other hand, it continues to use committee and subcommittee vetoes to monitor agency actions.(see footnote 16)

Conclusions

At certain points in our constitutional history, there has been a compelling need for an authoritative and binding decision by the Supreme Court. The unanimous ruling in Cooper v. Aaron (1958), signed by each Justice, was essential in dealing with the Little Rock desegregation crisis. Another unanimous decision in United States v. Nixon (1974) disposed of the confrontation between President Nixon and the judiciary regarding the Watergate tapes. For the most part, however, court decisions are tentative and reversible like other political events.

There is no reason for Congress to defer automatically to the judiciary because of its supposed technical skills and political independence. Much of constitutional law depends on factfinding and the balancing of competing values, areas in which Congress justifiably can claim substantial expertise. Each decision by a court is subject to scrutiny by private citizens and public officials. What is ''final'' at one stage of our political development may be reopened at some later date, leading to revisions, fresh interpretations, and reversals of Supreme Court doctrines. Members of Congress have both the authority and the capability to participate constructively in constitutional interpretation.

Through this process of interaction among the branches, all three institutions are able to expose weaknesses, hold excesses in check, and gradually forge a consensus on constitutional values. Also through this process, the public has an opportunity to add a legitimacy and a meaning to what might otherwise be an alien and short-lived document.(see footnote 17)


BIOSKETCH FOR LOUIS FISHER

Louis Fisher is a senior specialist in separation of powers with the Congressional Research Service of the Library of Congress. He began work with CRS in 1970 and served as research director of the House Iran-Contra Committee in 1987, writing major sections of the final report.

His books include President and Congress (1972), Presidential Spending Power (1975), The Constitution Between Friends (1978), The Politics of Shared Power (4th ed. 1998), Constitutional Conflicts Between Congress and the President (4th ed. 1997), Constitutional Dialogues (1988), American Constitutional Law (2d ed. 1995), Presidential War Power (1995), and Political Dynamics of Constitutional Law (with Neal Devins, 2d ed. 1996). His textbook in constitutional law is available in two paperbacks: Constitutional Structures: Separation of Powers and Federalism and Constitutional Rights: Civil Rights and Civil Liberties. With Leonard W. Levy he edited the four-volume Encyclopedia of the American Presidency (1994). He has twice won the Louis Brownlow Book Award, the encyclopedia he co-edited was awarded the Dartmouth Medal, and in 1995 he received the Aaron B. Wildavsky Award ''For Lifetime Scholarly Achievement in Public Budgeting'' from the Association for Budgeting and Financial Management.

He received his doctorate in political science from the New School for Social Research (1967) and has taught at Queens College, Georgetown University, American University, Catholic University, Indiana University, Johns Hopkins University, the College of William and Mary law school, and the Catholic University law school.

Dr. Fisher has been invited to testify before Congress on such issues as executive spending discretion, presidential reorganization authority, the legislative veto, the line-item veto, the Gramm-Rudman-Hollings Act, executive privilege, executive lobbying, covert spending, the pocket veto, recess appointments, the budget process, the balanced budget amendment, biennial budgeting, and presidential impoundment powers.

He has been active with CEELI (Central and East European Law Initiative) of the American Bar Association, traveling to Bulgaria, Albania, and Hungary to assist constitution-writers, participating in CEELI conferences in Washington, D.C. with delegations from Bosnia-Herzegovina, Lithuania, Romania, and Russia, and serving on CEELI ''working groups'' on Armenia and Belarus. As part of CRS delegations he traveled to Russia and Ukraine to assist on constitutional questions.

Dr. Fisher's specialties include constitutional law, war powers, budget policy, executive-legislative relations, and judicial-congressional relations. He is the author of more than 200 articles in law reviews, political science journals, encyclopedias, books, magazines, and newspapers. He has been invited to speak in Albania, Australia, Bulgaria, Canada, the Czech Republic, England, Germany, Greece, Holland, Israel, Macedonia, Malaysia, Mexico, the Philippines, Romania, Russia, Slovenia, Taiwan, and Ukraine.

(Excerpt) Read more at commdocs.house.gov ...


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Reply To Judge Richard A. Posner On The Inseparability Of Law And Morality

[79] Constitutional scholar, John Eidsmoe, outlined several precepts of the philosophy of relativism as applied to law:

(1) There are no objective, God-given standard of law, or if there are, they are irrelevant to the modern legal system.
(2) Since God is not the author of law, the author of law must be man; it is law simply because the highest human authority, the state, has said it is law and is able to back it up.
(3) Since man and society evolve, law must evolve as well.
(4) Judges, through their decisions, guide the evolution of law.
(5) To study law, get at the original sources of law- the decisions of judges; hence most law schools today use the "case law" method of teaching law. 117

…Justice Holmes, writing for the majority in, Trop v. Dulles, held that, "[ the Constitution] must draw it's meaning from the evolving standard of decency that mark the progress of a maturing society." 120 Likewise, Cardozo, a no less equally revered jurist as Holmes, stated in his book, The Nature of the Judicial Process, that, "I take judge-made law as one of the existing realities of life." 121 Dornan and Vedlik, in a similar vein said, [the Court has] "liberated itself from what the Declaration of Independence called "the Laws of Nature and of Nature's God." 122 Finally, it was Chief Justice Charles Evan Hughes who boldly exclaimed that-" The Constitution is what the judges say it is." 123

…The judge, in deciding a case, looks to the end he wishes to achieve or his "gut feeling" and crafts the necessary means via application of a "Rule of law" to rationalize such a conclusion. 124 Another precept of realism follows a reasoning-as-rationalization approach to the law is rule-skepticism which holds that "the law . . . consists of decisions, not of rules." 125 Thus, realists have concluded that since judges' decisions are the law, the Common Law doctrine of stare decisis (i. e., precedent) is no longer relevant in modern judicial decisionmaking. 126 To the realist, the law was too much in a state of flux and indeterminacy for stare decisis to apply. Also, realists questioned the rationale of binding a judges opinion in one case to a decision in another case decided many years before, because the judge in the latter case could always find some "distinguishing" fact from the earlier to justify having a different result since no two cases are exactly alike.

The Inseparability Of Law And Morality, The Constitution, Natural Law And The Rule Of Law

Judicial Monopoly Over the Constitution:Jefferson's View The President can refuse to enforce court orders he believes in conflict with the Constitution. (The courts have no enforcement machinery, i. e., prosecuting attorneys, police, armies, prisons, or electric chairs, of their own.) As Andrew Jackson is alleged to have said, "John Marshall has made his decision; now let him enforce it."

Congress, the Court, and the Constitution(first excerpt) why must the Court rather than the Congress be the states' defender?

Congress, the Court, and the Constitution (2nd & 3rd excerpt) If one has trouble imagining judicial review so confined in its scope, it is probably because the modern American mind, conditioned by at least a half-century of judicial supremacy, can hardly help but regard the judicial branch as a co-equal partner in the public policy making process. But it was doubtless to prevent such participation by judges in policy-making that the Founders circumscribed the jurisdiction and power of courts so narrowly in the first place.

How Not To Overturn Roe v. Wade The unstated premise of those who have adopted this strategy is that the Justices do not understand the nature of abortion, and that if they are forced to confront the scientific and medical facts about the conception and development of the unborn child, they will be compelled to reconsider Roe v. Wade and hold that the unborn child is a constitutional person. To speak in spiritual terms, the critics assume that the problem lies in the intellect rather than the will. That premise is mistaken.

Constitutional Persons:An Exchange on Abortion ...Roe had nothing whatever to do with constitutional interpretation. The utter emptiness of the opinion has been demonstrated time and again, but that, too, is irrelevant. The decision and its later reaffirmations simply enforce the cultural prejudices of a particular class in American society, nothing more and nothing less. For that reason, Roe is impervious to logical or historical argument; it is what some people, including a majority of the Justices, want, and that is that.

Lincoln on Judicial Despotism I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by other departments of the government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time, the candid citizen must confess that if the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.

STENBERG v. CARHART :Justice Scalia, dissenting. If only for the sake of its own preservation, the Court should return this matter to the people-where the Constitution, by its silence on the subject, left it-and let them decide, State by State, whether this practice should be allowed. Casey must be overruled.

1 posted on 03/16/2003 2:42:45 PM PST by Remedy
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To: Remedy
This is a very good description of how our system actually works. It may also be the only way our system can work, regardless of what the Founders may have intended. Whether it accurately describes original intent is another matter, and there is reason to doubt that it does--but that is probably irrelevant, in practice. My opinion is that the Founders had no consensus of opinion on this issue, and many probably had not fully considered all the issues.
2 posted on 03/16/2003 3:10:39 PM PST by sourcery (The Oracle on Mount Doom)
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To: sourcery
[W]e have no government armed with power capable of contending with human passions unbridled by morality and religion....Our constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other. (Source: John Adams, The Works of John Adams, Second President of the United States, Charles Francis Adams, editor (Boston: Little, Brown, and Co. 1854), Vol. IX, p. 229, October 11, 1798.)

Without morals a republic cannot subsist any length of time; they therefore who are decrying the Christian religion, whose morality is so sublime & pure, [and] which denounces against the wicked eternal misery, and [which] insured to the good eternal happiness, are undermining the solid foundation of morals, the best security for the duration of free governments. (Source: Bernard C. Steiner, The Life and Correspondence of James McHenry (Cleveland: The Burrows Brothers, 1907), p. 475. In a letter from Charles Carroll to James McHenry of November 4, 1800.)

[O]nly a virtuous people are capable of freedom. As nations become corrupt and vicious, they have more need of masters. Source: Benjamin Franklin, The Writings of Benjamin Franklin, Jared Sparks, editor (Boston: Tappan, Whittemore and Mason, 1840), Vol. X, p. 297, April 17, 1787.

Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports. In vain would that man claim the tribute of patriotism who should labor to subvert these great pillars of human happiness, these firmest props of the duties of man and citizens. The mere politician, equally with the pious man, ought to respect and to cherish them. A volume could not trace all their connexions with private and public felicity. Let it simply be asked, Where is the security for property, for reputation, for life, if the sense of religious obligation desert the oaths, which are the instruments of investigation in Courts of Justice?

And let us with caution indulge the supposition that morality can be maintained without religion. Whatever may be conceded to the influence of refined education on minds of peculiar structure, reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle. It is substantially true, that virtue or morality is a necessary spring of popular government. The rule, indeed, extends with more or less force to every species of free government. Who, that is a sincere friend to it, can look with indifference upon attempts to shake the foundation of the fabric? (Source: George Washington, Address of George Washington, President of the United States . . . Preparatory to His Declination (Baltimore: George and Henry S. Keatinge), pp. 22-23. In his Farewell Address to the United States in 1796.)

3 posted on 03/16/2003 3:26:13 PM PST by Remedy
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To: Coleus
Bump in response to your post
4 posted on 03/16/2003 5:19:09 PM PST by Remedy
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To: sourcery; Remedy
My opinion is that the Founders had no consensus of opinion on this issue, and many probably had not fully considered all the issues.

They most certainly did have a consensus, as was indicated by virtually all major statements that touched the subject while the Constitution was being written and debated for adoption. It was only after the Constitution went into effect that some people imagined that the courts shouldn't override Congress, but it never approached the accepted view. Even before Marbury vs. Madison, a circuit court refused to take an action required by a certain part of the Judiciary Act, on the grounds that it imposed extraconstitutional duties upon the court (I don't have a citation immediately at my fingertips). Congress obligingly amended the offending provision, without controversy.

5 posted on 03/16/2003 6:20:37 PM PST by inquest
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To: inquest

>>as was indicated by virtually all major statements that touched the subject while the Constitution was being written and debated for adoption.<<

From Hamilton, who was a loose constructionist:

The Federalist No. 78

ALEXANDER HAMILTON
May 28, 1788

…all judges who may be appointed by the United States are to hold their offices DURING GOOD BEHAVIOR… The standard of good behavior for the continuance in office of the judicial magistracy, is certainly one of the most valuable of the modern improvements in the practice of government. In a monarchy it is an excellent barrier to the despotism of the prince; in a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body. And it is the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws.

the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them….The judiciary…. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.

…from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches;

Some perplexity respecting the rights of the courts to pronounce legislative acts void, because contrary to the Constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power. It is urged that the authority which can declare the acts of another void, must necessarily be superior to the one whose acts may be declared void. As this doctrine is of great importance in all the American constitutions, a brief discussion of the ground on which it rests cannot be unacceptable.

Court excerises judgement, not will or force

Legislature voids any exercise of will by the Court.


6 posted on 03/17/2003 6:35:02 AM PST by Remedy
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To: Remedy
I'm having to guess at your point. I believe your saying that because the judicial branch has no direct means of enforcing its interpretations, it therefore has no power to make its interpretations binding. I disagree, and I don't think Hamilton would agree either. It is of course true in some abstract sense that the power of the courts extends only so far as people's willingness to obey them, but the same can be said of the law itself.

The Founders intended for the political branches of government to be subject to the law - i.e., the Constitution - and as well intended for the judiciary to declare the meaning of that law. If the political branches contemn the courts on such matters, they are in effect announcing that they are behaving outside the law, and that they recognize no restraints upon their discretion. This defeats the whole purpose of having a written Constitution.

7 posted on 03/17/2003 7:40:30 AM PST by inquest
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To: inquest
From POST #1 - If one has trouble imagining judicial review so confined in its scope, it is probably because the modern American mind, conditioned by at least a half-century of judicial supremacy, can hardly help but regard the judicial branch as a co-equal partner in the public policy making process.
8 posted on 03/17/2003 10:42:49 AM PST by Remedy
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To: Remedy
I have to beg that you excuse me for not understanding, but are you agreeing with me or disagreeing? It's becoming difficult to tell where you're coming from. I certainly never argued that the judicial branch should be in any way part of the policy-making process, as that is an inherently political process, and judges are intended to be as apolitical as possible. But it is their job to determine, in the cases that arise before them, whether the policies they're being asked to uphold are in fact consistent with the Constitution.
9 posted on 03/17/2003 11:56:11 AM PST by inquest
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To: inquest
>>>...But it is their job to determine, in the cases that arise before them, whether the policies they're being asked to uphold are in fact consistent with the Constitution.

Until the Warren Court started determining cases based on "is it fair".

That put them into "policy".

They have been screwed up ever since.

10 posted on 03/17/2003 4:07:59 PM PST by Dan(9698)
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To: Dan(9698)
Actually, the Warren court's yardstick for determining cases was: How to Protect Big Government While Restraining its Ability to Do Things That Offend Liberals. This of course bears scant resemblance to what I was talking about.
11 posted on 03/17/2003 6:18:33 PM PST by inquest
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To: inquest
The Founders intended for the political branches of government to be subject to the law - i.e., the Constitution - and as well intended for the judiciary to declare the meaning of that law. If the political branches contemn the courts on such matters, they are in effect announcing that they are behaving outside the law, and that they recognize no restraints upon their discretion. This defeats the whole purpose of having a written Constitution.
-inquest-


Exactly. -- Just as Marshall said in M v M:

"The question, whether an act, repugnant to the constitution, can become the law of the land, is a question deeply interesting to the United States; but happily, not of an intricacy proportioned to its interest. It seems only necessary to recognize certain principles, supposed to have been long and well established, to decide it.
That the people have an original right to establish, for their future govern-ment, such principles as, in their opinion, shall most conduce to their own happiness, is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it, nor ought it, to be frequently repeated. The principles, therefore, so established, are deemed fundamental. And as the authority from which they proceed is supreme, and can seldom act, they are designed to be permanent.

This original and supreme will organizes the government, and assigns to different departments their respective powers. It may either stop here, or establish certain limits not to be transcended by those departments.
The government of the United States is of the latter description. The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed, are of equal obligation.

It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act.

Between these alternatives there is no middle ground. The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it."
__________________________________

Wise man, - at this point.

30 years later, in Barron v Baltimore he damn near destroyed the union by 'ruling' that states were not bound by the BOR's.
- Figure that reversal of character.

12 posted on 03/17/2003 7:25:07 PM PST by tpaine
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To: tpaine
I wouldn't call it a reversal of character. I can guarantee you he would have ruled the same way in 1803.
13 posted on 03/17/2003 7:28:34 PM PST by inquest
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To: inquest
"I can guarantee you he would have ruled the same way in 1803."


Based on what facts?
14 posted on 03/17/2003 8:01:05 PM PST by tpaine
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To: inquest

>>>But it is their job to determine, in the cases that arise before them, whether the policies they're being asked to uphold are in fact consistent with the Constitution.<<<
I agree. It is also the job of the President and Congress to defend the Constitution as required by their respective oaths of office. If, in their judgement, S.C.O.T.U.S. rules contrary to the Constitution, the President and/or Congress have several options to mitigate the damage done by judicial decree - as described in POST#1 links.

15 posted on 03/18/2003 8:41:34 AM PST by Remedy
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To: tpaine
Based on the fact that there was no controversy of any significance surrounding the Barron decision. This would indicate that the vast majority of Marshall's compatriots, both in and out of the legal profession, shared his view as to the scope of the Bill of Rights.

It's a view consistent with the Preamble to the same, which stated that it was passed "to prevent misconstruction or abuse of its [the Constitution's] powers", which would mean federal powers, since the states don't get their powers from the U.S. Constitution. It's also consistent with the reason why the BOR was passed: namely, because the people were afraid that this new federal experiment would be too large and too distant to be controlled by them. They weren't looking for protection from their own state governments. You'll notice that the Articles of Confederation didn't contain a bill of rights. It was only after the Constitution was passed that the people demanded one.

16 posted on 03/18/2003 9:45:12 AM PST by inquest
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To: Remedy
I can see where I've been misunderstanding you. I was responding to sourcery's comment, which I had assumed was a statement saying the notion of judicial review had not been settled at the time of the founding.

I can agree in principle that there are ways of dealing with unconstitutional rulings. I would still urge extreme caution, however, against all talk of impeachment of judges on the basis of their rulings.

There are really two categories of judicial review that are quite different from each other, at least in practice, but unfortunately they're often treated as one. The first is review of state policy. It is in this arena that modern judges are most deserving of the accusation of judicial activism. Certainly Roe vs. Wade and a host of other infamous rulings fall in that category. The federal courts never seem to tire of pushing states around at their whim.

The second category is review of federal policy. Here, the problem is exactly the opposite. Congress for decades has invaded the prerogative of the states, and abused individual rights (campaign finance, gun control, etc.), and the courts have let them get away with it time and again. Any talk of impeachment is clearly going to make that problem even worse.

Since the bulk of judicial activism concerns review of state laws, the best way for Congress to handle it, if they should be so inclined, is simply to cut off the courts' appellate jurisdiction over state laws, or at least certain categories of state laws. Let's not rock the boat more than we have to.

17 posted on 03/18/2003 10:27:40 AM PST by inquest
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To: inquest
Based on the fact that there was no controversy of any significance surrounding the Barron decision.

Odd 'fact'. -- Supposedly Marshall had a -- 'states rights trumped the BOR's' -- view in 1803, because barron wasn't controversial 30 years later?

This would indicate that the vast majority of Marshall's compatriots, both in and out of the legal profession, shared his view as to the scope of the Bill of Rights.

They were trying to prevent a civil war by so holding. Compromising principle never works.

It's a view consistent with the Preamble to the same, which stated that it was passed "to prevent misconstruction or abuse of its [the Constitution's] powers", which would mean federal powers, since the states don't get their powers from the U.S. Constitution.

But all states pledged to honor our Constituton as the supreme law of the land. The BOR's Preamble did not alter this basic principle.

It's also consistent with the reason why the BOR was passed: namely, because the people were afraid that this new federal experiment would be too large and too distant to be controlled by them. They weren't looking for protection from their own state governments. You'll notice that the Articles of Confederation didn't contain a bill of rights. It was only after the Constitution was passed that the people demanded one.

The BOR's was intended to outline individual liberties that were NOT to be infringed by governments in the USofA at any level. -- You are exactly right that the people demanded one.

18 posted on 03/18/2003 10:33:44 AM PST by tpaine
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To: inquest
Based on the fact that there was no controversy of any significance surrounding the Barron decision.

Odd 'fact'. -- Supposedly Marshall had a -- 'states rights trumped the BOR's' -- view in 1803, because barron wasn't controversial 30 years later?

This would indicate that the vast majority of Marshall's compatriots, both in and out of the legal profession, shared his view as to the scope of the Bill of Rights.

They were trying to prevent a civil war by so holding. Compromising principle never works.

It's a view consistent with the Preamble to the same, which stated that it was passed "to prevent misconstruction or abuse of its [the Constitution's] powers", which would mean federal powers, since the states don't get their powers from the U.S. Constitution.

But all states pledged to honor our Constituton as the supreme law of the land. The BOR's Preamble did not alter this basic principle.

It's also consistent with the reason why the BOR was passed: namely, because the people were afraid that this new federal experiment would be too large and too distant to be controlled by them. They weren't looking for protection from their own state governments. You'll notice that the Articles of Confederation didn't contain a bill of rights. It was only after the Constitution was passed that the people demanded one.

The BOR's was intended to outline individual liberties that were NOT to be infringed by governments in the USofA at any level. -- You are exactly right that the people demanded one.

[something is over-riding my 'italics' commands]

19 posted on 03/18/2003 10:37:51 AM PST by tpaine
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To: tpaine
Odd 'fact'. -- Supposedly Marshall had a -- 'states rights trumped the BOR's' -- view in 1803, because barron wasn't controversial 30 years later?

Well, you're right. Taken in isolation, that fact wouldn't prove much about what his views were in 1803. That's why I put it in some historical context. Suffice it to say, even though it's true that the states weren't allowed to do anything that would conflict with the Constitution, it was the view from the time the BOR was passed, that the BOR didn't prohibit the states from doing anything; therefore no law that the states passed would have conflicted with it.

In order to have a conflict you need a prohibition. And it was the understanding at the time, that the way the BOR was worded, it did not constitute a prohibition on state action. The general view was that the Constitution had to specifically indicate that it was prohibiting states from doing something; otherwise it was considered a prohibition on federal action only. That's just how they read it.

The BOR's was intended to outline individual liberties that were NOT to be infringed by governments in the USofA at any level.

You could actually take that argument further and say that it outlined liberties people are entitled to all throughout the world ("all men are...endowed by their Creator with certain unalienable rights"). Nevertheless, the federal government was invested only with the power of upholding rights within a certain sphere. No one at the time of the founding thought to give it unlimited power of upholding rights. The people knew that power, even when granted for just purposes, was ultimately dangerous to their rights. They wanted that power to be balanced between state and federal governments, with the bulk of it going to the former.

20 posted on 03/18/2003 11:26:14 AM PST by inquest
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